Archive for February, 2011

In four days we reach the 150th anniversary of the inauguration of Abraham Lincoln as President of the United States. During the four months that had passed since his election, seven states had seceded from the Union and Congress had debated several compromises which, some hoped, would either lure the seven back into the Union or at least avoid a civil war. But many representatives and senators were no longer interested in a compromise by the first of March that year. Senator Zachariah Chandler of Michigan took to the floor of the United States Senate:

“This is not a question of compromise,’’ he said. “This is a question of whether we have, or have not, a government. . . . We are told that six states have seceded, and that the Union is broken up; and all we can do is send commissioners to treat with traitors with arms in their hands; treat with men who have fired upon your flag; treat with men who have seized your custom-houses, who have erected batteries upon your navigable waters and who now stand defying your authority. Sir, I will never submit to this degradation. I would rather join the Comanches.’’

“God forbid, I hope not,’’ quipped Senator Louis Wigfall of Texas, who had not left the Senate yet even though Texas had, “they have already suffered much from their contact with the whites.’’

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If you haven’t already found it, I highly recommend the “Disunion” series on the web pages of the New York Times, from which this anecdote comes. “Disunion” is following the Civil War as it unfolded 150 years ago and is a marvelous series of blog posts. And, as yet, the NYTimes has not retreated behind its pay wall, so it remains available at no charge.

Anyone who visits the western United States will eventually come across a postcard of the jackalope, a mythic cross between a jack rabbit and a Pronghorn antelope. But, as far as I know, the jackalope had never made an appearance in a legal opinion from any court anywhere. But last week, the animal was immortalized by the Seventh Circuit Court of Appeals in Chicago. Confronted with a case involving a group of former employees seeking penalties under Indiana law against stockholders of their former corporate employer, the court ruled against the employees. In disposing of the claim, Judge Easterbrook wrote:

Plaintiffs want to combine the Indiana statute, which makes employers liable for penalties when they do not pay wages on time, with the New York statute, which makes some equity investors directly liable to workers for wages and benefits. Yet neither state passed such a hybrid law, which the district judge likened to a griffin or jackalope. (A griffin is a mythical creature, but a jackalope is the main character in the short film Boundin’ and therefore must exist. Surely Pixar would not mislead millions of children.)

For Valentine’s Day the folks at Enature have contributed a mating game for we humans to discover which members of the other species our romantic behavior most closely emulates. Play their Mating Game and discover for yourself. However, even if you turn out not to resemble a bird romantically, be sure to click on the bird species descriptions. There you will learn, for instance , that the male Greater Roadrunner dangles a tasty food morsel – a mouse, say – in front of his intended but won’t let her have it until after they’ve mated. Or that Sandhill Cranes, which mate for life, go through elaborate courtship rituals when young. They dance, display, hop, flap, and strut. But after many years together, they simply jump up and down a couple of times before mating.

We left off last time after Alaskan Senator Ted Stevens was convicted of the felony offense of failing to report a $250,000 gift, on the basis of hearsay evidence. Remember the note that Stevens wrote to Bill Allen whose company performed $250,000 of work on Stevens’ home and was never paid for the work:

Dear Bill,

Thanks for all the work on the chalet. You owe me a bill – remember Torricelli, my friend. Friendship is one thing – compliance with these ethics rules entirely different. I asked Bob P to talk to you about this so don’t get P.O.’ed at him – it just has to be done right.

This time we pose the question of what was his lawyer thinking when that piece of evidence reared its head.

Here again is the transcript:

Q: Did you send Senator Stevens a bill or an invoice after you received the note from him?

A: No.

Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?

A: Yes.

Q: What did Mr. Persons tell you?

A: He said oh, Bill, don’t worry about getting a bill. He said, Ted is just covering his ass.

Bill Allen testifying about something that Bob Persons told him. Textbook hearsay evidence. And look at the third question. A lawyer representing Stevens would need to be comatose or dead not to rear up and object to that question before Allen had a chance to answer it. A second-year law student would not have missed that objection. You wouldn’t have missed it.

But Brendan Sullivan, Stevens’ lawyer missed it. Sullivan, experienced and prominent Washington D.C. lawyer, sat on his hands and did not object. And the answer destroyed his first-line defense – that Stevens intended to pay for the work on his Alaskan chalet.

I don’t have an answer for this mystery nor have I seen any more of the trial transcript than you have. It may be that this piece of evidence and Sullivan’s objection to it was made outside the presence of the jury, but I doubt it.

One more thing you should know: the government did not disclose to Stevens’ defense lawyers that Allen was going to testify that Bob Persons had told him that the note was just a “CYA” effort. The government’s failure to disclose that news was the primary reason why the trial judge – with brand-new Attorney General Eric Holder in complete agreement – dismissed the entire case against Stevens on the basis of prosecutorial misconduct. The felony conviction was wiped from the record, although too late to help Stevens in his re-election campaign in which he was defeated.

But that just makes the failure to object to the question, “What did he tell you?” even worse. Sullivan was sitting there, a question clearly asking for hearsay evidence is asked, he doesn’t know in advance what the answer is and he just sits there? Most lawyers would have come out of their seats to object so fast that someone would have to scrape them off the ceiling.

But Sullivan is an eminent, successful D.C. lawyer. He may have had some plan in mind that so far exceeds my poor ability to grasp it, that I should be embarrassed for raising the question. But I doubt it; I think he just screwed up.

O.J. Simpson Mug Shot (Public Domain)

That thought leads me to the last observation I’ll make about the Stevens case. It was, obviously, a high-profile, news-worthy case. A phenomenon about such cases that I have noted over my career is a need on the part of news media to assume that any lawyer involved in such a case must be the cream of the crop. Remember O.J. Simpson’s “Dream Team?” Competent lawyers, without doubt, but incompetence of the prosecutors and, especially, the judge, explain why Simpson was acquitted of murder. The same thing is happening now with the lawyers involved in the Tuscon murder case. The lead defense lawyer apparently is a genius and the lead prosecutor is right up there with her. That might be true, maybe those two lawyers are the greatest lawyers in the history of the American bar. More likely? They are just as good as thousands of lawyers all across the land who are in court as I write this, doing their jobs competently, without the media taking the slightest notice.

And I’m betting that every one of them would have objected to the question, “What did Mr. Persons tell you?”